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DECREE

Defining the liability regime applicable to heads of State agencies, organizations and units in performing tasks and public duties

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the February 26, 1998 Ordinance on Cadres and Civil Servants; the April 28, 2000 Ordinance Amending and Supplementing a Number of Articles of the Ordinance on Cadres and Civil Servants; and the April 29, 2003 Ordinance Amending and Supplementing a Number of Articles of the Ordinance on Cadres and Civil Servants;

At the proposal of the Minister of Home Affairs,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Scope of regulation

This Decree defines the liability regime applicable to heads of state agencies, organizations and units in performing tasks and public duties.

Article 2.- Subjects of application

1. This Decree applies to heads of the following state agencies, organizations and units:

a/ Ministries, ministerial-level agencies and government-attached agencies; administrative organizations under ministries, ministerial-level agencies or government-attached agencies;

b/ People's Councils and People's Committees at all levels; boards of provincial- or district-level People's Councils; professional agencies of provincial- or district-level People's Committees;

c/ The State President Office; the National Assembly Office, the Nationalities Council and Committees of the National Assembly; the Office of the Central Steering Committee for Corruption Prevention and Combat; the State Audit; people's courts and people's procuracies at all levels; military courts and military procuracies at all levels;

d/ State-run organizations and non-business units;

e/ State-owned economic groups, corporations and companies (below collectively referred to as state enterprises).

2. Deputy heads of state agencies, organizations or units defined in Clause 1 of this Article shall also be held responsible like their respective heads for the domains under their leadership, management and administration as authorized or decided in writing by their respective heads or by superior-level agencies.

3. Heads and deputy heads of organizations constituting state agencies, organizations or units defined in Clause 1 of this Article shall also be subject to the liability regime while making proposals, advices, reports or performing their assigned tasks related to the regime of liability of heads of state agencies, organizations or units.

Article 3.- Interpretation of terms

1. "Deputy heads of state agencies, organizations or units" defined in Clause 2, Article 2 of this Decree are those who are assigned to assist their respective heads in managing and taking charge of certain domains within the agencies or units or a number of attached agencies, organizations and units.

2. "The liability regime" applicable to heads and deputy heads of state agencies, organizations or units means all regulations on functions, tasks, powers and competence delegated to them by the State; all violations of this regime will be handled according to Article 6 of this Decree.

3. "Heads and deputy heads of state enterprises" defined at Point e, Clause 1, Article 2, of this Decree are chairmen of the management board and state employees appointed as general directors, deputy general directors, directors or deputy directors of state enterprises.

Article 4.- Grounds for determining the regime of liabilities of heads and deputy heads

1. Obligations, tasks, powers and interests of cadres and civil servants and things which must not be done by cadres, civil servants and employees specified in the Ordinance on Cadres and Civil Servants and other relevant legal documents.

2. The relationship and division of jobs between heads and their deputies in directing, managing and administering state agencies, organizations or units.

3. The liability regime applicable to heads specified in Article 7 of this Decree.

Article 5.- Liabilities of persons assigned to lead or take charge of state agencies, organizations or units

Those who are assigned to lead or take charge of state agencies, organizations or units defined in Clause 1, Article 2 of this Decree are also subject to the liability regime like heads of state agencies, organizations or units.

Article 6.- Forms of liabilities of heads and deputy heads of state agencies, organizations or units

1. If heads and deputy heads of state agencies, organizations or units violate the liability regime specified in this Decree, they shall, depending on the nature and severity of their violations, be subject to one or a number of the following forms of liabilities:

a/ Disciplinary liability;

b/ Civil liability;

c/ Material liability;

d/ Penal liability;

e/ Other liabilities defined by law.

2. Disciplinary liability: If heads and deputy heads of state agencies, organizations or units violate legal provisions while performing their tasks or public duties but their violations are not serious enough for examination of penal liability, they shall, depending on the nature and severity of their violations, be disciplined. The disciplining must comply with legal provisions on disciplining of cadres and civil servants.

3. Civil liability: If heads and deputy heads of state agencies, organizations or units commit law-breaking acts while performing their tasks or public duties, causing damage to or hurting the honor or dignity of individuals or the prestige of agencies, organizations or units to the extent of civil liability, they shall, apart from being disciplined, be subject to civil liability. The imposition of civil liability on heads and deputy heads of state agencies, organizations or units complies with civil law and civil procedure law.

4. Material liability: If heads and deputy heads of state agencies, organizations or units commit law-breaking acts while performing their tasks or public duties, causing the loss or damage to equipment, facilities or properties of agencies, organizations or units, but their violations are not serious enough for examination of penal liability, they shall bear material liability in accordance with law.

5. Penal liability: If heads and deputy heads of state agencies, organizations or units commit a crime defined in the Penal Code while performing their tasks or public duties, they shall bear penal liability as prescribed in Article 2 of the 1999 Penal Code. The imposition of penal liability on heads and deputy heads of state agencies, organizations or units shall comply with provisions of criminal law and criminal procedure law.

Chapter II

LIABILITY REGIME APPLICABLE TO HEADS

Article 7.- Contents of the liability regime applicable to heads

1. To take responsibility for all activities of agencies, organizations or units they are assigned to lead and manage.

2. To set bright examples and strictly abide by the lines, undertakings and policies of the Party, laws of the State and instructions of their superiors; to organize and run their agencies, organizations or units for the performance of assigned functions, tasks and powers within set schedule; to decide on undertakings and solutions necessary for fulfilling tasks and take responsibility for their decisions.

3. To promulgate or propose competent agencies or persons to promulgate legal documents and ensure the legality of these documents (including normative documents, specific documents, directing and administering official letters and internal rules and regulations to be applied within their respective agencies, organizations or units).

4. Basing themselves on decentralization regulations and assigned tasks and powers, to promulgate documents defining the functions, tasks, powers and responsibilities of deputy heads, of attached agencies, organizations or units or of each cadre, civil servant or employee under their management; to avoid the assignment of overlapping tasks or unspecified responsibilities; and to ensure that cadres, civil servants and employees under their management perform their assigned functions, tasks and powers in strict accordance with law.

5. To recruit, employ, evaluate, train and manage cadres, civil servants and employees, raise their wages, appoint them to participate in rank-promotion exams and decide on their rank promotion, appointment, commendation, disciplining and retirement in strict accordance with the Party undertakings and policies and the state laws.

6. To manage and effectively use allocated public assets; to prevent and fight fire and explosion and ensure labor safety in their agencies, organizations or units. To comply with the prescribed regimes, policies and legal provisions on the use of financial sources, assets, equipment and facilities; to conduct management and regular inspection so as to prevent corruption, waste or property loss or damage.

7. To comply with legal provisions on culture behaviors in working offices; to prevent cadres, civil servants and employees under their management from showing imperious behaviors towards or causing harassment to citizens and enterprises while performing their tasks or public duties.

8. To organize the implementation of the Regulation on the exercise of democracy in agencies, organizations or units; to settle complains and denunciations under their competence in accordance with law.

9. To strictly comply with legal provisions on the protection of state secrets, the supply of information, the exploitation, management and use of the Internet within their agencies, organizations or units.

10. Other liabilities prescribed by law.

Article 8.- Liabilities of authorities competent to appoint or assign tasks to heads

1. Competent authorities, when deciding to appoint or assign tasks to heads, shall specify the powers and tasks of persons who are appointed as heads on the following principles:

a/ The powers of heads must correspond to their assigned responsibilities and tasks;

b/ Powers, responsibilities and tasks assigned to heads must be clear and specific.

2. Authorities competent to appoint or assign tasks to heads shall ensure all conditions on personnel, finance, equipment and time for heads to perform their assigned responsibilities, powers and tasks.

Chapter III

COMMENDATION, AND HANDLING OF VIOLATIONS

Article 9.- Commendation

Heads and deputy heads who have splendidly fulfilled their tasks and public duties and strictly abided by the liability regime specified in this Decree and other relevant legal documents will be commended in accordance with law, considered for re-appointment or nomination for or appointment to higher positions, considered for wage raising ahead of schedule or appointed to participate in rank-promotion examinations in accordance with law.

Article 10.- Cases of liability handling of heads

1. They violate the regulations on liabilities of heads specified in Article 7 of this Decree.

2. They have detected law-breaking acts committed by cadres, civil servants and employees under their management while performing tasks and public duties but fail to apply resolute measures to stop these violations and to promptly and effectively remedy the consequences.

3. They fail to assign tasks or assign unclear tasks to their subordinates or fail to inspect or urge them to perform their tasks.

4. They fail to promptly settle issues falling within their competence though subordinates have reported and asked for their directing opinions on these issues.

5. They give instructions in contravention of law or give unclear, too general or inconsistent instructions, causing waste to the state budget and assets; advise or propose competent authorities to promulgate or promulgate according to their competence documents in contravention of law; or fail to fulfill their assigned tasks on schedule.

6. Their deputies, representatives or authorized persons act in contravention of state regimes, policies and laws while performing tasks and public duties prescribed for the heads by law.

7. Their deputies or cadres, civil servants and employees under their management commit corruption or cause waste.

8. They fail to end the lingering situation of lodging complaints and denunciations to improper authorities.

9. They fail to strictly handle, or cover up law-breaking acts committed by their subordinates.

Article 11.- Special cases

For state agencies, organizations or units which apply the regime of collective administration, when settling an issue falling under the deciding competence of the leadership board, if the opinions of the majority of the leadership boards are contrary to Party undertakings and policies or the state laws but the head or the deputy head who is assigned to administer or manage this domain has no different opinion, he/she shall bear liability at the level higher than other members of the leadership board of the state agencies, organizations or units as prescribed in this Decree.

Article 12.- Principles on the handling of heads and deputy heads

When handling heads and deputy heads who violate the liability regime, apart from the principles on disciplining cadres, civil servants and employees prescribed by law, the following principles must be complied with:

1. The handling of heads and deputy heads who violate the liability regime applicable to heads must be carried out in a just and enlightened, public and objective manner in accordance with law, set procedures and strictly according to the nature and severity of their violations so as to avoid injustice or omission of violations;

2. If heads and their deputies commit law-breaking acts of the same nature and severity, the heads shall bear liability at a level higher than their deputies.

Article 13.- Cases of exemption from or extenuation of the liabilities applicable to heads and deputy heads

1. Heads and deputy heads may be exempted from liabilities in the following cases:

a/ They are unable to be aware of, or have fulfilled their responsibility and applied necessary measures to prevent corrupt acts, waste or other law-breaking acts;

b/ Heads or deputy heads, who are assigned to take charge of a domain, have promulgated a legal document to amend, supplement, replace, annul or cancel the implementation of a part or all of the contents of a document promulgated illegally by themselves and have remedied consequences caused by the promulgation and implementation of this illegal document;

c/ Heads and deputy heads have applied measures to prevent and combat natural disasters, calamities, accidents or other force majeure circumstances;

d/ The heads were absent at their agencies, organizations or units and have authorized their deputies in writing to settle affairs during their absence; in this case, the deputy heads shall take responsibility for their acts and decisions regarding the performance of their heads’ tasks or powers as prescribed in the authorization document;

e/ In case where heads or deputy heads are required to abide by decisions of their superiors but have grounds to believe that these decisions are illegal, they shall immediately report such to the superior agencies of the persons who have issued these decisions and not be subject to the liabilities for consequences caused by the implementation of these decisions.

2. Heads and deputy heads who violate the liability regime will be considered for a lower degree of discipline if they have acknowledged their violations, submitted their resignations and applied remedies, with the approval of competent authorities.

Article 14.- Cases of aggravation of liabilities of heads and deputy heads

Heads and deputy heads who violate the liability regime shall be considered for aggravation of liabilities in the following cases:

1. They falsely report on the situation and results of performance of assigned tasks and public duties;

2. The mass media have reported or superior authorities have detected and given directing opinions on law-breaking acts committed in their agencies, organizations or units, but the heads and deputy heads still fail to implement these directing opinions or promptly apply handling measures, thus causing consequences;

3. Heads and deputy heads have been disciplined for violations of the liability regime but repeat their violations, are dishonest in reporting on or accepting criticisms about their violations or deliberately shirk or shift their responsibilities to others.

Article 15.- Complaints, denunciations, petitions, initiation of lawsuits and appeals

1. Heads and deputy heads of state agencies, organizations or units may lodge complaints, file petitions, initiate lawsuits or appeals against handling decisions of competent agencies or persons in accordance with law.

2. Citizens may denounce acts of violating the liability regime committed by heads and deputy heads of state agencies, organizations or units prescribed in this Decree and other relevant legal documents in accordance with law.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 16.- Effect, guidance and inspection of the implementation

1. This Decree takes effect 15 days after its publication in "CONG BAO."

2. Competent bodies of political organizations shall guide and inspect the implementation of this Decree in agencies or units under political organizations or socio-political organizations.

3. The Minister of Home Affairs shall inspect the implementation of this Decree in state agencies, units, organizations and enterprises specified at Points a, b, c, d and e, Clause 1, Article 1 of this Decree.

Article 17.- Implementation responsibility

Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairmen of People's Councils and presidents of People's Committees at all levels, and concerned agencies, organizations and individuals shall implement this Decree.